Reprinted from the 

COLUMBIA LAW REVIEW, MARCH, 1906. 


Expansion of Constitutional Powers 

BY 

INTERPRETATION: 


An Address before the 

Dwight Ai,umni Association, Nbw York, 
February 26th, 1904. 



PAUL FULLER 






EXPANSION OF CONSTITUTIONAL POWERS 
BY INTERPRETATION.! 

What explanation or apology is to be offered for under¬ 
taking to talk to lawyers of the Constitution of the United 
States and its interpretation ? Is this a legal subject, or a 
political subject? Is it a subject that lies at the very 
foundation of all our law, and order, and justice, and with 
which as an initial necessity every student must have made 
himself familiar before receiving the sheepskin that evi¬ 
dences his right to set himself as a guide to the unwary 
and inexperienced ; or, on the other hand, does it concern 
only those who are privileged to govern the country, so 
that it may be safely put aside and left out of present con¬ 
sideration by the profession whose daily task is mainly 
confined to unravelling and smoothing out the differences 
and controversies between private citizens, and enforcing 
the respect of private rights? It is, however, in neither of 
these categories. Admission to the Bar may unfortunately 
be had, with the faintest modicum of acquaintance with the 
instrument upon whose sound interpretation the growth of 
this powerful and unique Federation rests, and though the 
subject is largely political, it concerns so closely and so 
widely the questions of individual rights that it is not pos¬ 
sible to set it aside or leave it out of an ever present con¬ 
sideration ; and it behooves all members of the profession 
to be abreast of the judicial work which is unceasingly 
remodelling and altering the familiar features of this un¬ 
rivalled charter. 

A recent distinguished member of the Department of 
Justice who has come to practice his profession among us, 
told a body of assembled merchants some time ago that the 
Supreme Court was a perpetual convention for the amend¬ 
ment of the Constitution. If this be so, and for the moment 
I am not disposed to question it, then we may well give 
heed to the statement of the late Lord Chief Justice Rus¬ 
sell, who called attention to the peculiar opportunities of 
the American Bar whose members alone have the privilege 
of a formative influence upon the constitutional framework 
of their government. As indicating the importance of such 


^ Address delivered before the Dwight Alumni Association, New York. 



194 


COLUMBIA LAW REVIEW. 


opportunity at the present moment it is germain to cite a 
remark reported to have been made by Mr. Justice Harlan 
of the Supreme Court at the Columbian University Law 
School at Washington: 

“ Let us hope that this great instrument which has served so well, 
will weather the storms which the ambitions of certain men are creating, 
in an effort to make this country a World Power.” 

The earliest doubts as to the powers conferred, and the 
earliest attempts to embody the gift of these powers in 
language which should disguise, instead of revealing, their 
ultimate possibilities may be traced to the discussions in 
the convention that framed the Constitution. I will con¬ 
tent myself with one pregnant illustration. 

The First Article of the Constitution contains the grant 
of legislative powers, provides for the organization of “ a 
Congress of the United States” and defines the powers of 
that Congress with minuteness and certainty. The Fourth 
Article has for its purpose to define the status and the 
rights of States and of the citizens of each State, and in this 
connection to provide for the admission of new States; at 
tne time there had been pending a controversy as to the 
ownership of vast tracts included in the relinquishment of 
sovereignty, “ proprietary and territorial rights ” made by 
Great Britain in the Treaty of 1783; this territory was 
claimed by several of the States under the colonial grants 
to the respective Colonies; the dispute had been in large 
part settled by the surrender of the claims of various States, 
to the Federal Government, under the conditions of the 
famous Northwest Ordinance, but the dispute was still 
alive as to a vast portion of such territory to which claim 
was laid by the Federal Government and by various States. 
Provision had to be made for the territory already surren¬ 
dered by the States and for the reservation of outstanding 
claims as to the remainder, and it was accordingly provided 
in this Article, designed to define the rights and privileges 
of States, that 

“ The Congress shall have power to dispose of, and make all needful 
rules and regulations respecting the Territory or other property belonging 
to the United States; and nothing in this Constitution shall be so construed 
as to prejudice any claims of the United States or of any particular State. 


^ Art. 10, Sec. 3, Subd. 2. 



EXPANSION OF CONSTITUTIONAL POWERS. 195 


This language seems plain enough as we read it now, 
without any other purpose than to understand it, not seek¬ 
ing to find in it the support of some preconceived theory, 
■or by its aid to overturn some claim which threatens the 
subversion of sectional relations, and yet when, fifteen years 
later, the acquisition of Louisiana made vital the question 
of the civil and political rights of its inhabitants, Gouv- 
■erneur Morris, the draftsman of that section, in a letter to 
Henry Livingston, gave this account of its covert inten¬ 
tion ; 

“ I always thought that when we would acquire Canada and Louisiana 
it would be proper to govern them as provinces and allow them no voice in 
our councils. In wording the third section of the Fourth Article I went as 
far as circumstances would permit to establish the exclusion. Candor 
obliges me to add my belief that had it been more pointedly expressed a 
strong opposition would have been made.” 

Twenty-five years later, the Supreme Court in American 
Insurance Co. v. Canter, sustaining the jurisdiction of 
territorial courts erected in Florida by Congressional 
action, without reference to the provisions of the Judiciary 
article, gave additional force to this expansive interpreta¬ 
tion of an occult purpose, by holding that until Florida 
became a State it continued “ to be a territory of the 
United States governed by virtue of that clause in the Con¬ 
stitution, which empowers Congress to make all needful 
rules and regulations respecting the territory of other 
property belonging to the United States.’’^ 

The Court was apparently unwilling to rest the power 
altogether upon the clause under consideration and added : 

“ Perhaps the power of governing a territory belonging to the United 
States, which has not, by becoming a State, acquired the means of self- 
government, may result necessarily from the fact that it is not within the 
jurisdiction of any particular State, and is within the power and jurisdic¬ 
tion of the United States. The right to govern may be the inevitable con¬ 
sequence of the right to acquire territory. Whichever may be the source 
whence the power is derived, the possession of it is unquestioned.” 

Notwithstanding this reservation, the seed was sown. 
But to return to Gouverneur Morris’ candid statement of 
the cautious methods used in the framing of the section in 
question, and the use for which this statement was elicited. 


(1828) I Pet. 511. 




196 


COLUMBIA LAW REVIEW. 


When Jefferson in his wise anxiety to secure the free 
navigation of the Mississippi began his negotiations to ac¬ 
quire New Orleans, he was finally met by a sudden pro¬ 
posal from Bonaparte, then First Consul, for the cession of 
the entire territory of Louisiana, coupled, however, with the 
condition that such territory should be admitted into the 
Union,—that its inhabitants should, according to the prin¬ 
ciples of the Constitution, be endowed with all the rights 
of citizens. 

Jefferson was fully alive to the incalculable importance of 
the acquisition ; he never doubted the right of the United 
States to acquire territory under its inherent rights of sov¬ 
ereignty and the power to make treaties, and he had accord¬ 
ingly opened the negotiations for the acquisition of the 
port of New Orleans which should command the mouth of 
the Mississippi; but he was satisfied that under the Con¬ 
stitution, Congress could only admit new States from the 
territory already under the jurisdiction of the government^ 
and that compliance with the terms of the treaty, which the 
commissioners had signed, was impossible without usurpa¬ 
tion of power or an amendment of the Constitution. He 
felt the value of the acquisition and dreaded to reopen the 
treaty and endanger that result; he valued a strict construc¬ 
tion of the Constitution and dreaded any strained interpre¬ 
tation to cover and encourage assumption of powers which 
had not been clearly conferred. 

Jefferson writes to Breckenridge on the 12th of August^ 
1803 : 

“ This treaty must, of course, be laid before both Houses, because 
both have important functions to exercise respecting it. They, I presume 
will see their duty to their country in ratifying and paying for it, so as to 
secure a good which would otherwise probably be never again in their 
power. But I suppose they must then appeal to the nation for an addi¬ 
tional article to the Constitution approving and confirming an act which 
the nation had not previously authorized.” 

And to Gallatin he wrote: 

“ There is no constitutional difficulty as to the acquisition of territory 
and whether when acquired it may be taken into the Union by the Consti¬ 
tution as it now stands will become a question of expediency. I think it 
will be safer not to permit the enlargement of the Union but by amend¬ 
ment of the Constitution.” 


EXPANSION OF CONSTITUTIONAL POWERS. 197 


And to William Dunbar he writes that Congress “will be 
obliged to ask from the people an amendment of the Con¬ 
stitution authorizing their receiving the province into the 
Union and providing for its government, and limitations of 
power which shall be given by that amendment will be 
unalterable but by the same authority.” 

When his friend Nicholas wrote him that he found the 
power under the Constitution as broad as it could well be 
made, Jefferson replied: 

“ I am aware of the force of the observations you make on the power 
given by the Constitution to Congress to admit new States into the Union 
without restraining the subject to the territory then constituting the United 
States. But when I consider that the limits of the United States are pre¬ 
cisely fixed by the treaty of 1783, that the Constitution expressly declares 
itself to be made for the United States, I cannot help believing that the in¬ 
tention was to permit Congress to admit into the Union new States which 
should be formed out of the territory for which and under whose authority 
alone they were then acting. * * * When an instrument admits two 
constructions, the one safe, the other dangerous, the one precise, the other 
indefinite, I prefer that which is safe and precise. I had rather ask an en¬ 
largement of power from the nation where it is found necessary, than to 
assume it by a construction which would make our powers boundless. Our 
peculiar security is in the possession of a written Constitution. Let us not 
make it a blank paper by construction.” 

He took advice of Gallatin, Levi Lincoln, Dunbar and 
Breckenridge ; he drafted two proposals of amendment to 
the Constitution, and finally yielded to the advice of his 
counsellors, repeating to the last his dread of the broad 
construction which the magnitude of the prize and the 
manifest honesty of purpose in the transaction were cover¬ 
ing. 

He writes to Breckenridge: 

“ The legislature, in casting behind them metaphysical subtleties and 
risking themselves like faithful servants, must ratify (the treaty) and pay 
for it and throw themselves on their country for doing for them unauthor¬ 
ized what we know they would have done for themselves had they been in 
a situation to do it. * * * But we shall not be disavowed by the na¬ 

tion and their act of indemnity will confirm and not weaken the Constitu¬ 
tion, by more strongly marking out its lines.” 

And his last word to Nicholas was this : 

“I confess, then, I think it important, in the present case, to set an 
example against broad construction, by appealing for new power to the 
people. If, however, our friends think differently, certainly I shall acqui¬ 
esce with satisfaction, confident that the good sense of our country will 
correct the evil of construction when it shall produce ill effects.” 


198 


COLUMBIA LAW REVIEW, 


Twenty-five years later, as we have seen, Jefferson’s 
great Federalist antagonist, speaking for the Supreme 
Court, partly set his doubts at rest by the decision in Amer¬ 
ican Insurance Co. v. Canter. 

Another seed of the bamboo tree of expansive interpre¬ 
tation which was laid in the Convention was the provision 
in reference to the imposition of direct taxes. Article I» 
Sec. 2, treating of the membership of the House of Repre¬ 
sentatives, provides that “ Representatives and direct taxes 
shall be apportioned among the several States, according 
to their respective numbers,” while Sec. 9 of the same arti¬ 
cle, treating of the limitations on Congress, provides that: 

No capitation or other direct tax shall be laid unless in 
proportion to the census,” &c. 

The Constitution was yet in its infancy, one of the mem¬ 
bers of the Convention was on the bench, Hamilton at the 
Bar, and Madison a philosophic onlooker. A tax on car¬ 
riages had been imposed by Congress without regard to 
the rule of apportionment. Madison opposed its passage 
as being contrary to the constitutional rule, which required 
such a direct tax to be apportioned. The legality of the 
tax being questioned, it came before the Court in Hylton 
V. United States,^ where Hamilton maintained that it was 
not a direct tax, and was sustained by the Court, upon the 
assumption that the only taxes intended by the Convention 
to be included in the term “ direct,” were capitation taxes 
and taxes on land. If this was the intention, it is a subject 
of reasonable and unsatisfied conjecture as to why the Con¬ 
vention did not adopt so ready a phraseology as “ capita¬ 
tion taxes and taxes on land ” instead of adopting a phrase 
which so early afforded an opportunity of judicial enlarge¬ 
ment of the constitutional meaning. This seed grew, blos¬ 
somed and bore fruit until, a century later, under its influ¬ 
ence Congress passed the Income Tax Act of 1894, which 
in the Income Tax cases,^ was, after two hearings, held void, 
not only as imposing a direct tax by taxing income on 
lands, but as imposing a direct tax, by taxing the income of 
personalty. 

^ (1796) 3 Dali. 171. 

^ Pollock V. Farmers’ Loan & Trust Co. (1895) H 7 U. S. 429; 158 
U. S. 601. 



EXPANSION OF CONSTITUTIONAL POWERS. 199 


In the meantime the Veazie Bank case^ had come before 
the Court in which the power ot taxation was upheld,—not 
to raise money for the general welfare,—but to extinguish 
the exercise of an admitted power of the States in the crea¬ 
tion of Banks. There, in the effort to sustain the tax and ta 
confine the term direct tax to capitation and realty, the 
Court was brought face to face with two Acts of Congress 
including in the embrace of a direct tax a tax on negro 
slaves. 

The first of these Acts (1798)fixed a tax of 50^2^ ahead on 
slaves, and Mr. Chief Justice Chase found that in that Act 
the slaves were subjected to a capitation tax, in this way 
holding the term “ direct tax ’’ to be applicable only to 
capitation and realty. But in the subsequent acts of 1815 
and 1816 slaves were again made the subject of a direct tax 
and this time not at ^ocji a head but according to valuation 
by assessment. Here we will see that the law did not con¬ 
sider them as persons but graded the tax upon them accord¬ 
ing to their value, very clearly, even very grossly qualifying 
them as property. But this was disposed of by Mr. Chief 
Justice Chase in the statement that it was plain that in these 
latter statutes the slaves were taxed as realty. There is 
nothing to show that the nature or the legal status of the 
slave had changed from 1798 to 1815, and it is difficult to 
find the ground for thus shifting these unfortunates from 
the status of persons, the proper subjects of a capitation tax,, 
to realty, especially as the acts of Congress in question 
provided for a direct tax upon realty and in addition upon 
slaves. 

This is one of the fruits,—and one of the necessities,—of 
expansion of power by interpretation. 

These fruits are emphasized in some of the dissenting 
opinions in the Income Tax Case: 

“ I cannot resist the conviction that its opinion and decree in this case 
virtually annuls its previous decisions in regard to the powers of Congress 
on the subject of taxation, and is therefore fraught with danger to the court, 
to each and every citizen, and to the republic. * * * There is no great, 
principle of our constitutional law * * * which has not been ultimately 
defined by the adjudications of this court after long and earnest struggle. 
If we are to go back to the original sources of our political system, or are 

^ Veazie Bankz/. Fenno (1869) 8 Wall. 533. 



200 


COLUMBIA LAW REVIEW. 


to appeal to the writings of the economists in order to unsettle all these 
great principles, everything is lost and nothing saved to the people. The 
rights of every individual are guaranteed by the safeguards which have been 
thrown around them by our adjudication. If these are to be assailed and 
overthrown, the rights of property, so far as the Federal Constitution is 
concerned, are of little worth.” White, J. 

“ The decree now passed dislocates—principally, for reasons of an 
economic nature—a sovereign power expressly granted to the general gov¬ 
ernment and long recognized and fully established by judicial decisions and 
legislative actions. It so interprets constitutional provisions, originally de¬ 
signed to protect the slave property against oppressive taxation, as to give 
privileges and immunities never contemplated by the founders of the 
government.” Harlan, J. 

“ By resuscitating an argument that was exploded in the Hylton case 
and has lain practically dormant for a hundred years, it is made to do duty 
in nullifying, not this law alone, but every similar law that is not based upon 
an impossible theory of apportionment. * * * 

“ As I cannot escape the conviction that the decision of the court in 
this great case is fraught with immeasurable danger to the future of the 
country, and that it approaches the proportions of a national calamity, I 
feel it a duty to enter my protest against it.” Brown, J. 

“ It is greatly to be deplored that, after more than one hundred years 
of our national existence, * * * court should consider itself com¬ 
pelled to go back to a long repudiated and rejected theory of the Constitu¬ 
tion, by which the government is deprived of an inherent attribute of its 
being, a necessary power of taxation.” White, J. 

Thus we have seen that the germ of expansion of con¬ 
stitutional powers by judicial interpretation is to be found 
in the proceedings of the convention which framed the 
Constitution. We have purposely ambiguous language 
used in the Territorial Rules and Regulations Clause and 
we have in the clause on taxation the use of a phrase as to 
which the question was asked in the Convention ; “ What 
are direct taxes ?” A question which remained unanswered ; 
a phrase as to the limits and meaning of which there was 
evident disaccord, and to this day it is contended by some 
judges that the meaning was well understood, and by others 
that it was uncertain. 

The nature of the Constitution itself of necessity opened 
the door to a very broad exercise of such an interpretation 
as should serve to sustain, and vitalize and enlarge govern¬ 
mental powers, rather than any narrow construction tend¬ 
ing to curtail authority. 


EXPANSIOA OF CONSTITUTIONAL PO WERS. 201 


While the Constitution was under scrutiny in the various 
States whose assent was requisite to its promulgation, the 
dread of usurpation of authority was an element of peril as 
to its fate, and during that interim all that wisdom, knowl¬ 
edge and strong conviction could bring to bear on the 
States by way of argument was presented in the letters of 
Madison, Hamilton and Jay, since gathered together and 
known as the Federalist. As early after the adoption of 
the Constitution as 1791, the question arose upon Hamil¬ 
ton’s project for a United States Bank and in defence of 
such a charter, answering the arguments of Jefferson and 
Randolph, Hamilton laid down the rule of implied powers 
afterwards adopted by Chief Justice Marshall. 

To this I will recur shortly, stopping for a moment to 
show that the nature of the Constitution itself was such as 
to require latitude of interpretation. It was but a frame¬ 
work of governmental timbers, leaving the inner construc¬ 
tion to be completed in actual experience under the ulti¬ 
mate supervisory check of the Supreme Court. Here at 
the outset is a vast area within which contraction and ex¬ 
pansion can operate in sufficient freedom, without venturing 
outside of the boundary so rigorously fixed by the framers 
to the operations and powers of the central government. 

“ A Constitution,” says Chief Justice Marshall, “ to contain an accu¬ 
rate detail of all the subdivisions of which its great powers will admit, and 
of all the means by which they may be carried into execution, would par¬ 
take of the prolixity of a legal code, and could scarcely be embraced by 
the human mind. It would, probably, never be understood by the public. 
Its nature, therefore, requires, that only its great outlines should be marked, 
its important objects designated, and the minor ingredients which compose 
those objects, be deduced from the nature of the objects themselves. That 
this idea was entertained by the framers of the American constitution, is 
not only to be inferred from the nature of the instrument, but from the 
language. Why else were some of the limitations, found in the 9th section 
of the 1st article, introduced ? It is also, in some degree, warranted by 
their having omitted to use any restrictive term which might prevent its 
receiving a fair and just interpretation. In considering this question, then 
we must never forget that it is a Constitution we are expounding.”^ 

The “ great outlines ” therefore and the designation of 
the “ important objects ” are the guides to and the restraints 
upon interpretation. 

‘ McCulloch V. Maryland (1818) 4 Wheat. 316, 407. 



202 


COLUMBIA LAW REVIEW. 


Hamilton’s argument in favor of the power of Congress- 
to incorporate a bank, although no such specific power was 
enumerated in the Constitution rested upon the right of the 
government to provide the best means to carry out the 
powers admittedly conferred, and admirably states the 
extent and the limitations of the rule of construction. 

“ Difficulties on this point,” he says, “ are inherent in the nature of the 
Federal Constitution ; there will be cases clearly within the power of the 
national government; others, clearly without its powers ; and a third 
class, which will leave room for controversy and difference of opinion, 
and concerning which a reasonable latitude of judgment must be allowed.” 

How shall that third class be defined and limited ? That 
question is as much alive to-day as when Hamilton sug¬ 
gested it and suggested the answer. The doctrine he con¬ 
tended for, he adds : 

“ Does not affirm that the national government is sovereign in all re¬ 
spects, but that it is sovereign to a certain extent; that is to the extent of 
the objects of its specified powers. Every power vested in a government 
is in its nature sovereign, and includes, by force of the term, a right to 
employ all the means requisite and fairly applicable to the attainment of 
the ends of such power, and which are not precluded by restrictions and 
exceptions specified in the Constitution or not immoral, or not contrary to 
the essential ends of political society. 

“ All government is a delegation of power. But how much is dele¬ 
gated in each case, is a question of fact to be made out by fair reasoning 
and construction, upon the particular provisions of the Constitution. 

“ It is not denied that there are implied as well as express powers and 

that the former are as effectually delegated as the latter. * * * 

Then it follows that the only question is in every case, whether the means 
to be employed has a natural relation to any of the acknowledged ob¬ 
jects or lawful ends of government. * * * 

“To this mode of reasoning respecting the right of employing all the 
means requisite to the execution of the specified powers of the govern¬ 
ment, it is objected that none but necessary and proper means are to be 
employed. * * * Necessary often means no more than needful, re¬ 
quisite, iiicidental, useful or conducive to * * *. The whole turn of 

the clause containing it (the term) indicates that it was the intent of the 
Convention, by that clause, to give a liberal latitude to the exercise of the 
specified powers. The expressions have peculiar comprehensiveness. 

* * * 

“ To be necessary is to be incidental and may be denominated the 
natural means of executing a power. * * * 

“ The doctrine of implied powers is equivalent to the proposition that 
the government, as to its specified powers and objects, has plenary and 
sovereign authority, in some cases paramount to the States; in others, co- 


EXPANSION OF CONSTITUTIONAL POWERS. 203 


ordinate with it. For such is the plain import of the declaration that it 
may pass all laws necessary and proper to carry into execution those 
powers. The doctrine * * * leaves a criterion of what is constitu¬ 
tional and what is not so. This criterion is the end, to which the measure 
relates as a mean. If the end be clearly comprehended within any of the 
specified powers, and if the measure have an obvious relation to that end 
and is not forbidden by any particular provision of the Constitution, it may 
safely be deemed to come within the compass of the national authority.” 

The value of this exposition is enhanced if, in immediate 
connection with it, we read the few sections of the Consti¬ 
tution upon which the controversies turn, and the opinions 
of Chief Justice Marshall a quarter of a century later and 
note how absolutely he followed the great Federalist 
leader. 

These are the constitutional provisions: 

“ Art. I, § VIII, Subd. i8. To make all laws which shall be necessary 
and proper for carrying into execution the foregoing powers vested by this 
Constitution in the Government of the United States or in any Department 
or Officer thereof. 

“Art. X, Amndt. All powers not delegated to the United States by 
the Constitution, nor prohibited by it to the States, are reserved to the 
States, or to the people. 

“Art. IX, Amndt. The enumeration in the Constitution of certain 
rights shall not be construed to deny or disparage others retained by the 
people.” 

“ This government is acknowledged by all to be one of enumerated 
powers. The principle, that it can exercise only the powers granted to it, 
would seem too apparent to have required to be enforced by all those argu¬ 
ments, which its enlightened friends, while it was depending before the 
people, found it necessary to urge; that principle is now universally ad¬ 
mitted. But the question respecting the extent of the powers actually 
granted, is perpetually arising, and will probably continue to arise, so long 
as our system shall exist. * * * 

“ But it may with great reason be contended, that a government in¬ 
trusted with such ample powers, on the due execution of which the hap¬ 
piness and prosperity of the nation so vitally. depends, must also be 
intrusted with ample means for their execution. The power being given, 
it is the interest of the nation to facilitate its execution.” 

“ That instrument does not profess to enumerate the means by which 
the powers it confers may be executed. * * * ^ then, the subject 

of fair inquiry, how far such means may be employed. * * * 

“ The government which has a right to do an act, and has imposed on 
it the duty of performing that act, must, according to the dictates of reason, 
be allowed to select the means ; and those who contend that it may not 
select any appropriate means, that one particular mode of effecting the 


204 


COLUMBIA LAW REVIEW, 


object is excepted, take upon themselves the burden of establishing that 
exception.” 

“ Let the end be legitimate, let it be within the scope of the Consti¬ 
tution, and all means which are appropriate, which are plainly adapted to 
that end, which are not prohibited, but consist with the letter and spirit of 
the Constitution, are constitutional.”^ 

“ What do gentlemen mean by a strict construction ? 

“ If they contend only against that enlarged constructio 7 i, which would 
extend words beyond their natural and obvious import, we might question 
the application of the term, but should not controvert the principle. If 
they contend for that narrow construction which, in support of some theory 
not to be found in the (Constitution, would deny to the Government those 
powers which the words of the grant, as usually understood, import and 
which are consistent with the general views and objects of the instrument ; 
for that narrow construction, which would cripple the Government, and 
render it unequal to the objects for which it is declared to be instituted, 
and to which the powers given, as fairly understood, render it competent; 
then, we cannot perceive the propriety of this strict construction, nor adopt 
it as the rule by which the Constitution is to be expounded.”^ 

It is safe to say that if this rule of construction had been 
strictly adhered to, and to repeat the words of Hamilton, if 
the action of Congress had only been “ deemed to come 
within the compass of the national authority,” when the 
end to be accomplished was “ clearly comprehended within 
any of the specified powers, the measure having an obvious 
relation to that end, and not forbidden by any particular pro¬ 
vision of the constitution^ the Supreme Court would not to¬ 
day be characterized by a government official as a constitiu 
tional convention in permanent session, and therefore sub¬ 
ject to dissensions and animadversions inseparable from all 
conventions, and scarcely advantageous in courts of justice. 

In 1848, while the question of the government of the 
territory which had been wrested from Mexico was still 
under discussion and in abeyance, Mr. Webster was moved 
to use this language in the Senate: 

“ Arbitrary governments may have territories and distant possessions, 
because arbitrary governments may rule them by different laws and dif¬ 
ferent systems. Russia may rule in the Ukraine provinces of the Caucasus 
and Kamchatka by different codes, ordinances or ukases. We can do no 
such thing. They must be of us—part of us—or else strangers. 

“ I think I see that in progress which will disfigure and deform the 

1 McCulloch V. Maryland (1818) 4 Wheat. 316, 405, 408, 409. 

^ Gibbons v. Ogden (1824) 9 Wheat, i, 188. 






EXPANSION OF CONSTITUTIONAL POWERS. 205 


Constitution. * * * j think I see a course adopted that is likeiy to turn 
the Constitution under which we live into a deformed monster—into a 
curse rather than a blessing—in fact, a frame of an unequal government, 
not founded on popular representation, not founded on equality, but 
founded on the grossest inequality ; and I think that this process will go 
on, or that there is danger that it will go on until this Union shall fall to 
pieces.” 

And yet it was Mr. Webster who had argued the case 
of American Insurance Co. v. Canter,' contending that 
federal courts could be established there without reference 
to constitutional prescriptions. The situation of California, 
without even a territorial government, appealed to him as 
a responsible legislator somewhat more directly than did 
the condition of Florida, twenty years earlier when his 
interest was solely that of advocate, and he exclaimed: 

“ What is Florida.^ It is no part of the United States. How can it 
be } How is it represented } Do the laws of the United States reach 
Florida ? * * * Congress has the jus coronae in this case, and Florida 
is to be governed by congress as she thought proper. What has Congress 
done.? She might have done anything—she might have refused the trial 
■by jury.” 

And the citation above (of 1848) was his protest against 
the Congressional interpretation which so enlarged its 
powers over territory of the United States as to permit the 
government of such territory without any of the safeguards 
or limitations imposed by the Constitution. 

The senatorial views of Mr. Webster, rather than his 
views as counsel, received the approval of the Supreme 
Court in Pollard’s Lessee v. Hagan,2 in this language: 

“ It cannot be admitted that the King of Spain could, by treaty or 
otherwise, impart to the United States any of his royal prerogatives; and 
much less can it be admitted that they have capacity to receive or power to 
exercise them. Every nation acquiring territory, by treaty or otherwise, 
must hold it subject to the Constitution and laws of its own Government, 
and not according to those of the Government ceding it.” 

And in Cross v. Harrison,-^ relating to the status of Cali¬ 
fornia, where it held, that upon the conclusion of the treaty 
of peace, military occupants of the territory became the 
organs of a de facto civil government. “ This government 


' (1828) I Peters 511. ^ (1845) 3 How. 212, 225. 

2 (1853) 16 How'. 164, 185. 



206 


COLUMBIA LAW REVIEW. 


de facto will, of course, exercise no power inconsistent with 
the powers of the Constitution of the United States, which 
is the supreme law of the land.” 

The legal tender decisions afford another instance of the 
expansion of constitutional powers by interpretation. The 
law making notes of the government a legal tender for all 
debts public and private, was first brought in question be¬ 
fore the Supreme Court and declared unconstitutional. ‘ 

The question arising a second time, this earlier case was 
overruled and the acts were held constitutional as a war 
measure. 2 

This step gradually led to another, when the reissue of 
those notes in a time of peace under the Act of 1878 was 
upheld, not as the exercise of a war measure, but as one of 
the attributes of sovereignty which appertains to all govern¬ 
ments at all times; so that by interpretation the power to 
coin money has been made to include the power to stamp 
paper. 

After the acquisition which followed the Spanish war,, 
the questions which had been suggested in the cases of 
Florida, of Louisiana and of California were again brought 
forward, and the doctrine so tersely stated in the extracts 
quoted from Pollard’s Lessee v. Hagan, and from Cross v.. 
Harrison, indicating that all civil government in any terri¬ 
tory under the jurisdiction of the United States was to be 
controlled, not by any supposed powers of its previous sov¬ 
ereigns, but solely by the Constitution of the United States, 
was again questioned and again enlarged. By the various 
decisions known as the Insular Cases,^ it is now the con¬ 
stitutional privilege of Congress to govern acquired terri¬ 
tory very much as Mr. Webster contended in the American 
Insurance Company v. Canter, to-wit, by the jus coronaCy 
or as Congress may think fit and proper,” so that Congress 
may lawfully impose a different rate of taxation, a different 
order of duties, a different degree of civil liberty, a different 
rule as to criminal prosecutions, search warrants, and all 
the other guaranties, which hold good only for the States 
and organized Territories. 


^ Hepburn v. Griswold (1869) 8 Wall. 603. 
^ Legal Tender Cases (1870) 12 Wall. 457. 
^ (1900) 182 U. S. 



EXPANSION OF CONSTITUTIONAL POWERS. 207 


The power now consecrated to Congress allows it to 
put this annexed territory in the position of foreign coun¬ 
tries so far as its commerce with the rest of the United 
States is concerned, and to impose duties to and from such 
territories precisely as it does with reference to England 
or France. Indeed, a little more than it could do with 
reference to those countries, for while Congress cannot im¬ 
pose any duties upon exportations to England or France, it 
may lawfully authorize a tax or duty not only upon mer¬ 
chandise coming to the United States from the acquired ter¬ 
ritories, but also upon property going from the United 
States to our new possessions. 

It would prolong this paper too greatly to go any 
further into the consideration of these cases, but it is well 
to indicate that they were scarcely considered as an easy 
step from what preceded, but as in the cases of the 
Income tax, they were considered, by members of the 
court, as a very dangerous advance upon the prerogatives 
hitherto recognized in Congress. 

“ Although as we have just decided,^ Porto Rico ceased, after the 
ratification of the treaty with Spain, to be a foreign country within the 
meaning of the Tariff Act, and became a domestic country,—‘ a territory 
of the United States ’—it is said that if Congress so wills it may be con¬ 
trolled and governed outside of the Constitution, and by the exertion of the 
powers which other nations have been accustomed to exercise with respect 
to territories acquired by them; in other words, we may solve the question 
of the power of Congress under the Constitution by referring to the powers 
that may be exercised by other nations. 

“ I cannot assent to this view. I reject altogether the theory that 
Congress, in its discretion, can exclude the Constitution from a domestic 
territory of the United States, acquired, and which could only have been 
acquired, in virtue of the Constitution. 

“ The fathers never intended that the authority and influence of this 
nation should be exerted otherwise than in accordance with the Constitu¬ 
tion. If our Government needs more power than is conferred upon it by 
the Constitution, that instrument provides the mode in which it may be 
amended and additional power thereby obtained. The People of the 
United States who ordained the Constitution never supposed that a change 
could be made in our system of government by mere judicial interpre¬ 
tation.”" 

The last instance of expansion by interpretation which 

^ DeLima 2/. Bidwell (lyoo) 182 U. S. i. 

2 Downes v. Bidwell (1900) 182 U. S. 362-7. 



208 


COLUMBIA LAW REVIEW, 


I shall mention is one, the growth of which can be followed 
through various decisions of the Supreme Court beginning 
in 1897 and culminating in 1903. 

The case of Holden Hardy 1 came before the court in 
1897 upon complaint of some citizens of Utah that the 
statute regulating the employment of working men in un¬ 
derground mines and smelters was an abridgment of the 
privileges and immunities of the citizen and contrary to 
the provisions of the Constitution which prohibit any State 
from depriving any person of life, liberty or property 
without due process of law. The validity of the law was 
sustained as a proper exercise of the police power of a State, 
and in so doing the court used this language: 

“ In passing upon the validity of State legislation under that amend* 
ment (XIV) this court has not failed to recognize the fact that the law is,, 
to a certain extent, a progressive science; that in some of the States 
methods of procedure, which at the time the Constitution was adopted 
were deemed essential to the protection and safety of the people, or to the 
liberty of the citizen, have been found to be no longer necessary. Even 
before the adoption of the Constitution, the earlier practice of the common 
law, which denied the benefit of witnesses to a person accused of felony, 
had been abolished by statute, though so far as it deprived him of the as¬ 
sistance of counsel and compulsory process for the attendance of his wit¬ 
nesses, it had not been changed in England. But to the credit of her 
American colonies, let it be said that so oppressive a doctrine had never 
obtained a foothold there.” 

“ The present century has originated legal reforms of no less impor¬ 
tance. * * * 

“ Of course, it is impossible to forecast the character or extent of these 
changes, but in view of the fact that from the day Magna Charta was 
signed to the present moment, amendments to the structure of the law have 
been made with increasing frequency, it is impossible to suppose that they 
will not continue, aud the law be forced to adapt itself to new conditions 
of society. 

“ They (these changes) are mentioned only for the purpose of calling 
attention to the probability that other changes of no less importance may 
be made in the future, and that while the cardinal principles of justice are 
immutable, the methods by which justice is administered are subject to con¬ 
stant fluctuation.” 

“ In the future growth of the nation, as heretofore, it is not impossible 
that Congress may see fit to annex territories whose jurisprudence is that 
of the civil law. One of the considerations moving to such annexation 
might be the very fact that the territory so annexed should enter the Unioa 


^ (1897) 169 U. S. 366. 



i:XPAXS/ON OF CONSTITUTIONAL POWERS. 209 


with its traditions, laws and systems of administration unchanged. It 
would be a narrow construction of the Constitution to require them to 
abandon these, or to substitute for a system, which represented the growth 
of generations of inhabitants, a jurisprudence with which they had had no 
previous acquaintance or sympathy.”^ 

In 1901 the case of Downes v. Bid well, already com¬ 
mented on, was decided, in which it was held that the ter¬ 
ritories then recently acquired under the treaty of peace 
with Spain could be governed by Congress without regard 
to that limitation upon its powers which the Constitution 
phrases in these words : 

“ All duties, imposts and excises shall be uniform through¬ 
out the United States.^” 

The suggestion was made that if Congress was not bound 
in the government of these territories by that limitation, 
then none of the limitations upon the power of Congress 
were of any avail in such territories. Upon this possibility 
the opinion of the Court uses this language : 

“We suggest without intending to decide, that there may be a dis¬ 
tinction between certain natural rights, enforced in the Constitution by 
prohibitions against interference with them, and what may be termed arti¬ 
ficial or remedial rights, which are peculiar to our own system of jurispru¬ 
dence. Of the former class are the rights to one’s own religious opinion 
and to a public expression of them, or, as sometimes said, to worship God 
according to the dictates of one’s own conscience ; the right to personal 
liberty and individual property ; to freedom of speech and of the press; 
to free access to courts of justice, to due process of law and to an equal pro¬ 
tection of the laws ; to immunities from unreasonable searches and seizures, 
as well as cruel and unusual punishments; and to such other immunities 
as are indispensable to a free government. Of the latter class are the rights 
to citizenship, to suffrage and to the particular methods of procedure 
pointed out in the Constitution, which are peculiar to Anglo-Saxon jurispru¬ 
dence, and some of which have already been held by the States to be 
unnecessary to the proper protection of individuals.” 

Shortly following this pregnant suggestion there came 
before the Court the case of an inhabitant ot the Hawaiian 
Islands. The Hawaiian Islands had been annexed to the 
United States under a joint resolution of Congress which 
continued in force the municipal laws of the Hawaiian 
Republic, “ not contrary to the Constitution of the United 


^ Holden v. Hardy (1897) 169 U. S. 386, 7, 9. 
^ Art. I, Sec. 8, Subd. i. 



210 COLUMBIA LAW REVIEW, 

States.” The Constitution of the United States provides 
that: 

“No person shall be held to answer fora capital or otherwise infamous 
crime unless on the presentment or indictment of a grand jury,” and that 
“ in all criminal prosecutions the accused shall enjoy the right to speedy 
and public trial by an impartial jury.”^ 

One Mankichi, an inhabitant of Hawaii was prosecuted 
for murder, without any indictment by a grand jury, but 
solely upon the accusation of the Government, that is by an 
information.” In other words, he was put in jeopardy not 
by an accusation of the people but by the procedure of an 
official, and it was clearly this latter proceeding which the 
settled rules of the common law had abolished and which 
the Constitution had forbidden. The accused party was 
then put upon his trial and convicted, not by the jury 
known to the common law, but by the vote of nine out of 
twelve of the jurors who tried him. These proceedings, it 
was claimed on behalf of Mankichi were “ inconsistent with 
the Constitution of the United States ” and became unlawful 
in Hawaii after its annexation under the terms of the reso¬ 
lution which are above quoted. 

It had been decided by the United States Supreme 
Court that the protection of a grand jury was guaranteed 
by “ the positive and restrictive language of the great 
fundamental instrument by which the national government 
is organized and that “ an indictment found by a grand 
jury was indispensable to the power of the court to try the 
petitioner for the crime with which he was charged.”* 

Mankichi’s indictment by information and his convic¬ 
tion by a jury unknown to common law were, however, 
upheld and the distinction was made between fundamental 
rights and the right to what was characterized as merely 
a method of procedure.” The opinion of the court states: 

“ It is not intended here to decide that the words ‘ nor contrary to the 
Constitution of the United States ’ are meaningless. 

Therefore we should answer without hesitation in the negative the 
question put by counsel for the petitioner in their brief: ‘ Would municipal 
statutes of Hawaii, allowing a conviction of treason on circumstantial evi¬ 
dence, or on the testimony of one witness, depriving a person of liberty by 

^Art. 5, Arndts. Art. 6, Arndts. 

^ Ex Parte Bain (i886) I2i U. S. 6, 13. 



EXPANSION OF CONSTITUTIONAL POWERS, 211 


the will of the legislature and without process, or confiscating private prop¬ 
erty for public use, without compensation, remain in force after an annexa¬ 
tion of the territory to the United'States, which was conditioned upon the 
extinction of all legislation contrary to the Constitution?’ We would 
even go farther, and say that most, if not all, the privileges and immunities 
contained in the Bill of Rights of the Constitution were intended to apply 
from the moment of annexation; but we place our decision ot this case 
opon the ground that the two rights alleged to be violated in this case are 
not fundamental in their nature, but concern merely a method of procedure.” 

We have, therefore, as the last stag^e in the expansion of 
constitutional powers by interpretation the doctrine that 
the constitutional prohibition against any prosecution under 
authority of the federal government “ fora capital or other¬ 
wise infamous crime, unless on a presentment or indictment 
of a grand jury,’’ is a mere method of procedure, not vest¬ 
ing the citizen with any right but which, in the progress ot 
the science of law, may lawfully be dispensed with, and the 
further proposition that “ the right to a speedy and public 
trial by an impartial jury,” guaranteed by Article VI. of 
the Amendments, is satisfied by a trial before any such jury 
as a remodeled procedure may find available, and does not 
give to any person accused of crime any right to the com¬ 
mon law jury of twelve or to a unanimous verdict before 
condemnation. 

This pronouncement, it is submitted, is not only an 
extension of powers, but a departure from the doctrine laid 
down by the Supreme Court in a great number of other 
cases from 1850 to the present day.i 

It is proper to observe that the new doctrine met with 
the dissent of four members of the highest court; the 
ground of the dissent may be best stated in the language of 
these justices: 

Practically, under the view taken by the court, and so far as those 
guarantees were concerned,^ the courts in Hawaii, although acting 
under and by the authority of the United States, might have tried persons 
there for capital or infamous crimes in a mode confessedly ‘ contrary to the 
Constitution of the United States.’ The Constitution, speaking with com¬ 
manding authority to all who exercise power under its sanction, declares 

^Callan v. Wilson (1887) 127 U. S. 540; Mormon Church v. U. S. 
(1889) 136 U. S. I ; Thompson v. Utah (1897) 170 U. S. 343; Webster z/. 
Reid {1850) II How. 437; Ex Parte Bain (1886) 121 U. S. i ; Ex Parte 
MiJligen (1866) 4 Wall. 2. 

235. 



212 


COLUMBIA LAW REVIEW. 


that person shall beheld to answer for a capital or other infamous 
crime, unless on a presentment or indictment of a grand jury and it as 
clearly forbids a conviction in any criminal prosecution except upon the 
unanimous verdict of a petit jury. * * * Yet the present holding is that 

these constitutional requirements need not have been regarded in Hawaii, 
although that country is an integral part of the United States, and with its 
inhabitants was subject in all respects to our sovereign dominion. * * * 
(This view) assumes the possession by Congress of power quite as omnipo¬ 
tent as that possessed by the English Parliament. It assumes that Con¬ 
gress, which came into existence, and exists, only by virtue of the Constitu¬ 
tion, can withhold fundamental guarantees of life and liberty from peoples 
who have come under our complete jurisdiction.”^ 

“ It would mean that the benefit of the constitutional provisions de¬ 
signed for the protection of life and liberty may be claimed by some of the 
people subject to the authority and jurisdiction of the United States, but 
cannot be claimed by others equally subject to its authority and jurisdiction. 
It would mean that the will of Congress, not the Constitution, is the supreme 
law of the land only for certain peoples and territories under our jurisdic¬ 
tion. * * * It would mean that, under the influence and guidance of 

commercialism and the supposed necessities of trade, this country had left 
the old ways of the fathers, as defined by a written Constitution, and 
entered upon a new way, in following which the American people will lose 
sight of or become indifferent to principles which had been supposed to be 
essential to real liberty.”^ 

“ Such a doctrine would admit of the exercise of absolute, arbitrary 
legislative power under a written Constitution, full of restrictions upon 
Congress.”^ 

“ But it is said that * * * the two rights created by the constitu¬ 
tional provisions as to grand and petit jurors ‘ are not fundamental in their 
nature but concern merely a method of procedure.’ 

“ It is a new doctrine, I take leave to say, in our constitutional juris¬ 
prudence, that the framers of the Constitution of the United States did not 
regard those provisions, and the rights secured by them, as fundamental in 
their.nature. It is an indisputable fact in the history of the Constitution 
that that instrument would not have been accepted by the required number 
of States, but for the promise of the friends of that instrument, at the time, 
that immediately upon the adoption of the Constitution, amendments 
would be proposed and made that should prevent the infringement, by any 
Federal tribunal or agency, of the rights then commonly regarded as em¬ 
braced in Anglo-Saxon liberty; among which rights, according to universal 
belief at that time, were those secured by the provisions relating to grand 
and petit juries.”^ 

You have now had laid before you examples of the ex¬ 
tension of constitutional powers by the Executive, Legis¬ 
lative and Judiciary Departments. 

^ Pp. 239, 240. ^P. 240. 


'P. 236. 


^ P. 244. 



EXPANSION OF CONSTITUTIONAL POWERS. 215 


I have neither the authority nor the disposition to enter 
upon any comment on this growth, or to class it as healthy 
or unhealthy. It has been said by an eminent jurist that: 

“ The life of the law has not been logic, it has been experience. The 
felt necessities of the times, the prevalent moral and political theories, intu¬ 
itions of public policy, avowed or unconscious, even the prejudices which 
the judges share with their fellowmen, have had a good deal more to do 
than the syllogism in determining the rules by which men should'be gov* 
erned,” and that “ the substance of the law at any given time pretty nearly 
corresponds so far as it goes with what is then understood to be conveni¬ 
ent.”^ 

Whether this method is necessary to the growth of our 
country and of our institutions and can be properly applied 
to the fundamental instrument upon which our Govern¬ 
ment is based, and which was quite as much intended to 
limit powers as to confer them, is a question which I will 
do no more than suggest, and, at the same time, quoting' 
from distinguished authorities, suggest further whether or 
not, as heretofore stated by the Supreme Court, it is not 
unwise to “ recognize the doctrine, that because the Con¬ 
stitution has been found in the march of time sufficiently 
comprehensive to be applicable to conditions not within 
the minds of its framers, and not arising in their time, it 
may, therefore, be wrenched from the subjects expressly 
embraced within it, and amended by judicial decision 
without action by the designated organs in the mode by 
which alone amendments can be made,”^ and whether it 
is not wiser, as said by the Supreme Court in the 
Income Tax Cases, when it is found that the Constitu¬ 
tion should have been framed so as to permit of the 
exercise of a power to day deemed desirable, to have the 
instrument amended in the way in which it itself prescribes 
with great and far seeing sagacity,^ and again whether if 
any “ of the guarantees of life, liberty and property, which 
at the time of the adoption of the National Constitution 
were regarded as fundamental, and as absolutely essential 
to the enjoyment of freedom, have in the judgment of some 
ceased to be of practical value, it is (not) for the people of 


^ Holmes on the Common Law. 

^ McPherson v. Blacker (1892) 146 U. S. 36. 

3(1894) 158 U. S. 635. 



LIBRARY OF CONGRESS 



0 028 070 906 2 


214 COLUMBIA LAW REVIEW. 

the United States so to declare by an amendment of that 
instrument.’’^ 

Upon this subject, however, to aid the formation of your 
own judgment, I may well conclude these remarks by 
quoting the advice of Washington, who said: 

“ If, in the opinion of the people, the distribution or 
modification of the constitutional powers be in any partic¬ 
ular Wrong, let it be corrected by an amendment in the way 
in which the Constitution designates, but let there be no 
change by usurpation, for though this, in one instance, may 
be the instrument of good, it is the customary weapon by 
which free governments are destroyed. The precedent 
must always greatly overbalance in permanent evil any 
partial or transient benefit which the use can at any time 
yield.” Paul Fuller. 


^ Maxwell v. Dow (1899) ^ 7 ^ U. S. 617. 



